WASHINGTON – As a year marred with fights and stalemates within the federal government comes to a close, Republican lawmakers and President Obama are embroiled in yet another battle of wills.
Republican lawmakers are refusing to officially adjourn for the year in hopes of deterring Obama from making any unconfirmed appointments to controversial boards while Congress is on vacation.
Senate Republicans and the president can’t agree on new National Labor Relations Board members, leaving only two chairs on the board filled going into the new year.
This will cause the board to shut down, as a quorum cannot occur with two chairs filled. Obama will then be forced to make recess appointments in order to keep the board running.
However, under the Constitution the president can simply appoint someone to fill any of these slots on his own if the Senate is not in session.
In an effort to prevent these recess appointments, Republicans are having the Senate ‘gavel in gavel out’ every few days, meaning they are not officially adjourning for the year.
If this prevents the Senate from taking a recess, lawmakers believe Obama will be stopped from making any recess appointments.
However, this may all depend on how one defines a recess.
Obama could argue that two or three days can be defined as a recess, although recent history dictates that is not the case.
Political expert Stephen Hess of Brookings says the president would have to stretch to justify qualifying two or three days as a recess.
"He's got the option," Hess said, "but he's got to go back a long way in history to find an example that's going to suit his convenience if he wants to go ahead with a recess appointment."
Democratic strategist Doug Schoen believes an effort by the president to challenge the recess would be too risky.
“I think he's going to try to do what he can to avoid controversy and not try to be a lightning rod.” Schoen said.
Obama has an incentive to make the appointments. A board shutdown would infuriate labor unions since a friendly NLRB will help them expand union power.
"I guess he could squeeze that in, but I think it is a bad idea. I think recess appointments, for the most part, are done to bypass the Senate, the advice and consent that is required under the Constitution," said Sen. Phil Gingrey, R-Ga.
Gingrey is one of several lawmakers who say not only do they want to avoid the recess appointments, they want the NLRB to disappear altogether.
The NLRB had tried to prevent Boeing from opening a plant in South Carolina, a right-to-work state, saying to do so would be to bypass union rules on its plant in Washington state. The complaint was dropped after Boeing extended its contract with labor groups in Washington to 2016 and agreed its 737 Max airplane would be built on the West Coast.
Gingrey said that action is way beyond the scope of the NLRB's authority.
"We would be better if they could not do anything for the next year because they are killing jobs. And we are desperate for those jobs," he said.
Obama finds himself in a conundrum. If he avoids the controversy with Republicans, he risks angering his base, including union activists, a key element for his reelection next year. If he stirs up trouble with the GOP, he then risks paying a heavy political cost.
Fox News' Doug Luzader contributed to this report.